Nt Clj,- - AILA

U.S. Department of Justice

Executive Office for hnmigration Review

Office of the Chief Immigration Judge

Chief Immignnion Judge 5J07 LeestJUrg Pike. Suite 2500 Falls Church. Virgillid 2Z041

December 2,2013

MEMORANDUM

TO: All Immigration Judges All Court Administrators All Attorney Advisors and Judicial Law Clerks All hnmigration Court Staff

FROM: Brian M. O'leary ~ Nt Clj,"-__ ---Chief Immigration Judge . 0

SUBJECT: Operating Policies and Procedures Memorandum 13-03: Guidelines for Implementation of the ABT Settlement Agreement

Table of Contents

I. Introduction .......................................................................................................................... 2

II. The ABT Settlement ............................................................................................................ 2

Ill. Lodging Asylum Applications ............................................................................................. 2 A. Meaning of the Term "Lodged" ............................................................................... 3 B. "Lodged not Filed" Process .................................................................................... .3

L Defensive Asylum Applications Only ........................................................ .3 2. Court Staff Responsibilities ......................................................................... 3

a. General Process .............................................................................. .3 b. Applications Lodged by Mail or Courier.. ....................................... 4 c. Transmission of "Lodged not Filed" Date to USCIS ....................... 5

3. Filing the Defensive Asylum Application ................................................... 5 C. Addressing ABT hnplementation Issues ................................................................ .5

IV. The hnmigration Judges' Responsibilities ........................................................................... 6 A. Reasons for Adjournments ...................................................................................... 6 B. Offering Future Hearing Dates ................................................................................ 6 C. Providing the ISO-Day Asylum EAD Clock Notice ................................................ 6 D. Consideration of an Exception to the Onc-Year Bar ............................................... 6

V. Cases on Appeal or Remand ................................................................................................ 6

VI. Conclusion ........................................................................................................................... 7

Attachments: A. B.

ABT Settlement Agreement ISO-Day Asylum EAD Clock Notice

AILA InfoNet Doc. No. 13121062. (Posted 12/10/13)

OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement

C. Rejected Lodging Notice

I. Introduction

As part of a settlement of the nationwide class-action lawsuit B.H., et al. v. U.S. Citizenshipand Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.) (referred to as the “ABTSettlement Agreement”), the Executive Office for Immigration Review (“EOIR”) and the U.S.Citizenship and Immigration Services (“USCIS”) agreed to change certain procedures that willaffect the eligibility of some asylum applicants for employment authorization documents(“EAD”). This Operating Policies and Procedures Memorandum (“OPPM”) provides guidanceon the implementation of the terms of the ABT Settlement Agreement, a copy of which is providedas Attachment A.

II. The ABT Settlement

The ABT Settlement Agreement resulted from a class action complaint challenging theFederal Government’s practices with respect to EADs for applicants for asylum. The suit wasfiled in the U.S. District Court for the Western District of Washington in 2011. The plaintiff classconsisted of all noncitizens in the United States who have been placed in removal proceedings,have filed a complete Form I-589, Application for Asylum and Withholding of Removal, and havefiled or will file a Form I-765, Application for Employment Authorization, pursuant to 8 C.F.R. §274a.12(c)(8).

EOIR is required to implement certain interim provisions of the agreement on December 3,2013. These interim provisions include:

(1) making the 180-Day Asylum EAD Clock Notice (a copy of which is provided asAttachment B) available at hearings;

(2) providing the 180-Day Asylum EAD Clock Notice to an asylum applicant when theapplicant lodges or files an asylum application;

(3) stamping defensive asylum applications as “lodged not filed” at the immigration courtfiling window and entering the lodged date into CASE, to be transmitted to USCIS; and

(4) making certain amendments to OPPM 11-02: The Asylum Clock. These changes havebeen made and the OPPM has been reissued as OPPM 13-02: The Asylum Clock.

III. Lodging Asylum Applications

Pursuant to the ABT Settlement Agreement, EOIR will accept defensive asylumapplications at the immigration court filing window as “lodged not filed” and will transmit the“lodged not filed” date to USCIS.



A. Meaning of the Term “Lodged”

If a defensive asylum application is submitted outside of a hearing for the purpose oflodging the application, the asylum application will be stamped “lodged not filed” and returned tothe applicant, following the process laid out below. The lodged date is not the filing date and alodged asylum application is not considered filed. The requirement that an asylum application befiled before an Immigration Judge at a master calendar hearing will not change. See OPPM 13-02:The Asylum Clock; Revised OPPM 00-01: Asylum Request Processing. A respondent who lodgesan asylum application at an immigration court filing window must still file the application beforean Immigration Judge at a master calendar hearing. However, USCIS will consider the date onwhich an asylum application is “lodged not filed” for the purpose of calculating the time period forEAD eligibility.

B. “Lodged not Filed” Process

1. Defensive Asylum Applications Only

An asylum application that is first filed before an Immigration Judge at a master calendarhearing is known as a “defensive” application. Only a respondent who plans to file a defensiveasylum application, but has not yet done so, may lodge an asylum application. An asylumapplicant may only lodge an asylum application once. If an asylum application is lodged, it mustbe lodged before that application is filed before an Immigration Judge at a master calendar hearing.An applicant who already has an asylum application pending with the court may not lodge anasylum application. Accordingly, if a respondent filed an application with USCIS and USCISreferred that application to the court, the respondent may not lodge an asylum application.

2. Court Staff Responsibilities

a. General Process

If a respondent submits an asylum application at the immigration court filing window forthe purpose of lodging the application, court staff should make an initial determination as towhether the application may be lodged. In the following situations, court staff should reject theapplication:

o the Form I-589 does not have the applicant’s name;o the Form I-589 does not have the A-number;o the Form I-589 is not signed by the applicant (Part D on page 9 of the Form I-589);o the Form I-589 has already been lodged with the court;o the Form I-589 has already been filed with the court;o the Form I-589 was referred to the court from USCIS;o the Form I-589 is being submitted for lodging at the incorrect court location;o the case is pending before the Board of Immigration Appeals (“BIA”); oro the case is not pending before EOIR.

Such an application should not be stamped with the “lodged not filed” stamp or the court datestamp. Rather, the application should be rejected, and a copy of the 180-Day Asylum EAD ClockNotice need not be provided.



Note that a Proof of Service is not required to lodge an application. Accordingly, staffshould not reject an application for lack of a Proof of Service.

After determining that the asylum application may be lodged, court staff should stamp theapplication with the “lodged not filed” stamp and with the court date stamp. Court staff will thenupdate the field “lodged not filed” date in CASE. Court staff should not place the lodgedapplication or a copy of it in the Record of Proceeding. The original stamped application shouldbe returned to the respondent along with a copy of the attached 180-Day Asylum EAD ClockNotice.

Once a “lodged not filed” date is entered into CASE, it should not be changed except inunusual circumstances, such as to correct a data entry error. The “lodged not filed” date shouldnot be changed when the asylum application is filed or when the Immigration Judge issues adecision on the asylum application.

In addition, court staff should ensure that the 180-Day Asylum EAD Clock Notice isavailable in all courtrooms during hearings.

b. Applications Lodged by Mail or Courier

A respondent may submit an asylum application by mail or courier for the purpose oflodging the application. Court staff should make an initial determination as to whether theapplication may be lodged. If the application has any of the defects described in subsection (a),above, it should be rejected using the Rejected Lodging Notice, a copy of which is provided asAttachment C. The Rejected Lodging Notice should be processed in the same manner as anyother rejection notice. If the application is rejected, a copy of the 180-Day Asylum EAD ClockNotice need not be included with the rejection notice.

In addition to the defects described in subsection (a) above, court staff should also rejectthe application in the following situations:

o The application is not accompanied by a self-addressed stamped envelope orcomparable return delivery packaging. In this situation the application should berejected using the Rejected Lodging Notice, a copy of which is provided as AttachmentC. The Rejected Lodging Notice should be processed in the same manner as any otherrejection notice. If the application is rejected, a copy of the 180-Day Asylum EADClock Notice need not be included with the rejection notice.

o The asylum application is not accompanied by a cover page or does not include aprominent annotation on the top of the front page of the form stating that it is beingsubmitted for the purpose of lodging. In this situation the application should berejected using a regular Rejected Filing Notice, not the Rejected Lodging Notice. Ifthe application is rejected, a copy of the 180-Day Asylum EAD Clock Notice need notbe included with the rejection notice.

If an asylum application submitted by mail or courier meets the requirements for lodging,court staff should process the application as described in subsection (a), above.



c. Transmission of “Lodged not Filed” Date to USCIS

Once a date is entered into the “lodged not filed” field in CASE, it will be provided toUSCIS electronically. No additional action is necessary by court staff.

3. Filing the Defensive Asylum Application

As noted above, even if a respondent lodges an asylum application at an immigration courtfiling window or by mail or courier, the respondent still must file the application before anImmigration Judge at a master calendar hearing in order to apply for asylum. See section III(A)(Meaning of the Term “Lodged”), above. Whether or not a respondent lodged an asylumapplication does not affect the respondent’s eligibility to file a defensive asylum application at amaster calendar hearing.

When a respondent files an asylum application, the judge should make sure the respondentreceives a copy of the 180-Day Asylum EAD Clock Notice. See section IV (The ImmigrationJudges’ Responsibilities), below. In addition to providing the 180-Day Asylum EAD ClockNotice, the judge and court staff should follow the existing process for reviewing and accepting acomplete asylum application as filed. See Revised OPPM 00-01: Asylum Request Processing;OPPM 13-02: The Asylum Clock.

C. Addressing ABT Implementation Issues

Under the terms of the ABT Settlement Agreement, there is a separate Individual ABTClaim Review process for asylum applicants who believe they have not received the reliefdescribed in the Agreement. Applicants will have access to the Individual ABT Claim Reviewprocess before EOIR for the following claims only:

o The lodging claim – The clerk at the immigration court filing window refused to either1) stamp a respondent’s asylum application “lodged not filed,” or 2) after properlystamping a respondent’s asylum application “lodged not filed,” return the stampedapplication to the respondent.

o The notice claim – The respondent did not receive the 180-Day Asylum EAD ClockNotice when he or she lodged or filed a defensive asylum application, or the notice wasnot made available at all hearings before the Immigration Court.

To submit a complaint under the Individual ABT Claim Review process, an asylum applicant mustcomplete an ABT Claim Form and send it to EOIR’s Office of General Counsel.

Asylum applicants requesting review of an asylum clock issue outside of the IndividualABT Claim Review process should follow the administrative procedures set forth in section VII(Addressing Asylum Clock Requests) of OPPM 13-02: The Asylum Clock. Applicants claimingthat USCIS failed to fulfill one of its obligations under the ABT Settlement Agreement should filean ABT Claim Form with USCIS, following the instructions on the form.



IV. The Immigration Judges’ Responsibilities

This section describes the responsibilities of the Immigration Judges.

A. Reasons for Adjournments

The judge is responsible for deciding the reason for each adjournment. If at a hearing, thejudge must make the reason(s) for the case adjournment clear on the record. See OPPM 13-02:The Asylum Clock.

B. Offering Future Hearing Dates

Judges should follow the guidelines set forth in OPPM 13-02: The Asylum Clock whenoffering future hearing dates. Generally, when setting a non-detained case from a master calendarhearing to an individual calendar hearing, a minimum of 45 days must be allowed, even if the180-day adjudications deadline is imminent. Generally, when setting a detained case from amaster calendar hearing to an individual calendar hearing, a minimum of 14 days should beallowed. These time periods may be shortened if requested by the applicant.

C. Providing the 180-Day Asylum EAD Clock Notice

When the applicant files a defensive asylum application in court, the judge must make itclear on the record that the applicant received a copy of the 180-Day Asylum EAD Clock Notice.See section III(B)(3) (Filing the Defensive Asylum Application), above.

D. Consideration of an Exception to the One-Year Bar

The Immigration Judge adjudicates whether an asylum application was filed within oneyear after the date of the applicant=s arrival in the United States and, if not, whether an exception tothis filing deadline applies. See INA § 208(a)(2)(B); 8 C.F.R. § 1208.4. Legal determinationsregarding the effect of lodging an asylum application are within the province of the presidingImmigration Judge. For example, judges may consider the legal effect of lodging an asylumapplication when considering whether an exception to the one-year bar applies.

V. Cases on Appeal or Remand

As discussed in OPPM 13-02: The Asylum Clock, EOIR=s asylum adjudications clockpermanently stops when the judge issues a decision granting or denying the asylum application, asthe decision constitutes “final administrative adjudication of the asylum application, not includingadministrative appeal” under section 208(d)(5)(A)(iii) of the Immigration and Nationality Act.Therefore, EOIR’s asylum adjudications clock does not run during any appeal of the decision tothe BIA, during judicial review before the Federal courts, or if a case has been remanded to theImmigration Court. However, if an applicant is applying for asylum for the first time during aremanded proceeding, then the clock starts and stops as usual.

The ABT Settlement Agreement does not require any change in EOIR’s proceduresrelating to cases during any appeal of a decision to the BIA, during judicial review before the



Federal courts, or if a case has been remanded to the Immigration Court. However, immigrationcourt staff should be aware that USCIS’s procedures relating to calculation of work authorizationeligibility after a remand have changed. Pursuant to the ABT Settlement Agreement, if a decisionis appealed to the BIA and the BIA remands it to a judge for adjudication of an asylum claim,USCIS will include the total number of days between the Immigration Judge’s initial decision onthe asylum application and the date of the BIA’s remand order in determining the applicant’seligibility for work authorization. USCIS will also include the total number of days accruedfollowing the remand order, excluding any delays requested or caused by the applicant, indetermining the applicant’s eligibility for work authorization.

Accordingly, if an asylum applicant believes that he or she is eligible for workauthorization after his or her case is remanded to the Immigration Court, the applicant shouldcontact USCIS.

VI. Conclusion

This OPPM provides guidance on the implementation of ABT Settlement Agreement inproceedings before EOIR. If you have any questions, please contact your Assistant ChiefImmigration Judge or Mark Pasierb, Chief Clerk, Office of the Chief Immigration Judge.


ATTACHMENT A


CV11-2108-RAJ

Settlement Agreement, Page 1

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The Honorable Richard A. Jones

United States District Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

B.H., M.A., A.S.D., M.F., H.L.,

L.M.M.M., B.M., G.K., L.K.G., and D.W.,

Individually and on Behalf of All Others

Similarly Situated,1

Plaintiffs,

v.

U.S. CITIZENSHIP AND

IMMIGRATION SERVICES;

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW; Janet

NAPOLITANO, Secretary, Department of

Homeland Security; Alejandro

MAYORKAS, Director, U.S. Citizenship

and Immigration Services; Eric H.

HOLDER, Jr., Attorney General of the

United States; Juan OSUNA, Director,

Executive Office for Immigration Review,

Defendants.

No. CV11-2108-RAJ

REVISED SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is entered into by and between Named

Plaintiffs B.H., M.A., A.S.D., M.F., H.L., L.M.M.M., B.M., G.K., L.K.G., and D.W., (the

“Named Plaintiffs”) and the Class (defined in Section II.A. below) (collectively,

“Plaintiffs”), and Defendants U.S. CITIZENSHIP AND IMMIGRATION SERVICES

(“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); Janet 1 The original caption for this action listed “A.B.T., K.M.-W., G.K., L.K.G., [and] D.W.” as the individual

plaintiffs. This Notice will refer to this action as “ABT,” the Settlement Agreement in this action as “the

ABT Settlement Agreement,” claimants under the Agreement as “ABT claimants,” and the individual claim

review process under the Agreement as the “Individual ABT Claim Review process.”


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NAPOLITANO, Secretary, Department of Homeland Security; Alejandro MAYORKAS,

Director, U.S. Citizenship and Immigration Services; Eric H. HOLDER, Jr., Attorney

General of the United States; Juan OSUNA, Director, Executive Office for Immigration

Review (“Defendants”) (together with the Plaintiffs, the “Parties”), with reference to the

facts recited herein.

I. RECITALS

WHEREAS:

A. The Litigation.

1. On December 15, 2011, Plaintiffs filed a putative class action complaint,

challenging the Federal Government’s practices with respect to Employment

Authorization Documents (“EAD”) for applicants for asylum;

2. Plaintiffs are “all noncitizens in the United States who have been placed in

removal proceedings, have filed a complete Form I-589, Application for Asylum and

Withholding of Removal (“asylum application”), [and] have filed or will file a Form I-

765, Application for Employment Authorization, pursuant to 8 C.F.R. § 274a.12(c)(8)”;

3. On June 5, 2012, Plaintiffs amended their complaint. Defendants timely

answered the amended complaint on June 19, 2012;

4. The Action remains pending before the U.S. District Court for the Western

District of Washington.

B. Benefits of Settlement.

1. The Parties recognize the need to draw to a close litigation of this Action,

which has been pending for roughly a year, and desire to resolve the Action – after

engaging in two productive mediation sessions – by entering into this Agreement, thereby

avoiding the time and expense of further litigation;

2. Plaintiffs, in consultation with their counsel, have determined that this

Agreement is fair, reasonable, adequate and in the best interests of Plaintiffs; and

3. Defendants deny that they have committed any act or omission giving rise

to any liability, deny any wrongdoing, and state that they are entering into this Agreement

solely to eliminate the uncertainties, burden, and expense of further protracted litigation.

By entering into this Agreement, Defendants do not admit any factual allegations against

them; do not concede any defense or objection to the Action; do not admit having

violated any law, whether constitutional or statutory, federal or state; and do not admit

having violated any regulation or administrative or judicial case law.


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II. DEFINITIONS, CONDITIONS, AND MISCELLANEOUS PROVISIONS

NOW THEREFORE in recognition that the Parties and the interests of justice are best

served by concluding the litigation, subject to the Court’s approval and entry of an order

consistent with this Agreement, the undersigned Parties, through counsel, hereby

stipulate and agree as follows:

A. Definitions.

1. Action. “Action” means the lawsuit of B.H., et al. v. United States

Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.).

2. Application for Employment Authorization. “Application for employment

authorization” means the Form I-765, Application for Employment Authorization.

3. Asylum application. “Asylum application” means the Form I-589,

Application for Asylum and Withholding of Removal.

4. Class. The definition of the “Class,” as jointly proposed by the Parties and

approved by the Court, is as follows:

a. Notice and Review Class: All noncitizens in the United States who

meet all of the following criteria: (1) have filed or will file or lodge with Defendants a

complete asylum application; (2) whose asylum applications have neither been approved

nor subjected to a denial for which no rights of review or appeal remain; (3) whose

applications for employment authorization have been or will be denied; (4) whose

eligibility for employment authorization based on a pending asylum application will be

determined in a manner that is alleged to provide insufficient notice and/or opportunity

for review; and (5) who fall in one or more of the following Subclasses:

i. Hearing Subclass: Individuals who meet all of the

following criteria: (1) who have been or will be issued a Form I-862, Notice to Appear in

removal proceedings, or Form I-863, Notice of Referral to an immigration judge; (2) who

have filed or lodged, or sought to lodge, or who will lodge or seek to lodge a complete

defensive asylum application with the immigration court prior to a hearing before an

immigration judge; and (3) whose eligibility for employment authorization has been or

will be calculated from the date the asylum application was or will be filed at a hearing

before an immigration judge.

ii. Prolonged Tolling Subclass: Asylum applicants who meet

all of the following criteria: (1) non-detained asylum applicants whose time creditable

toward employment authorization is or will be stopped due to delay attributed to them by

Defendants; (2) who have allegedly resolved the issue causing the delay or will allegedly

resolve the issue causing the delay prior to the next scheduled hearing before an


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immigration judge; (3) but whose time creditable toward employment authorization

remains or will remain stopped until the next hearing date.

iii. Missed Asylum Interview Subclass: Asylum applicants

who meet both of the following criteria: (1) who have failed or will fail to appear for an

asylum interview with USCIS; and (2) who have not or will not accrue time creditable

toward eligibility for employment authorization following the date of the missed asylum

interview on account of missing that asylum interview.

iv. Remand Subclass: Asylum applicants who meet both of the

following criteria: (1) whose asylum applications were or will be denied by the

immigration court before they have been pending at least 180 days exclusive of applicant

caused delays; and (2) who subsequent to an appeal in which either the Board of

Immigration Appeals (BIA) or a federal court of appeals remands their case for further

adjudication of their asylum claim by an immigration judge, have not or will not accrue

additional time creditable toward eligibility for employment authorization.

5. Class counsel. “Class counsel” means counsel appointed to represent the

Class in accordance with Federal Rule of Civil Procedure 23(g), as follows:

Matt Adams

Christopher Strawn

NORTHWEST IMMIGRANT RIGHTS PROJECT (NWIRP)

615 2nd Avenue, Suite 400

Seattle, WA 98104

Melissa Crow

Mary Kenney

Emily Creighton

AMERICAN IMMIGRATION COUNCIL (AIC)

1331 G Street NW, Suite 200

Washington, DC 20005

Robert H. Gibbs

Robert Pauw

GIBBS HOUSTON PAUW

1000 Second Avenue, Suite 1600

Seattle, WA 98104

Iris Gomez

MASSACHUSETTS LAW REFORM INSTITUTE (MLRI)

99 Chauncy Street, Suite 500

Boston, MA 02111


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6. Class member. “Class member” means a member of the Class.

7. Court. “Court” means the U.S. District Court for the Western District of

Washington.

8. EAD. “EAD” means Employment Authorization Document.

9. Fairness Hearing. “Fairness Hearing” means the hearing required for Final

Approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e)(2) and

described at Section II.B.5. of this Agreement.

10. Individual ABT Claim Review. “Individual ABT Claim Review” refers to

the exclusive process used by individual ABT claimants who allege to be Class or

Subclass members and allege that USCIS and/or EOIR has failed to comply with terms of

this Agreement, as described in Section II.C.11.b.

11. Parties. “Party” or “parties” means the Defendants and the Plaintiffs,

including all Class members.

12. Preliminary Approval. “Preliminary Approval” means that the Court has

granted the Parties’ Joint Motion for Preliminary Approval of Settlement as described in

Section II.B.2. of this Agreement and ordered a Fairness Hearing.

B. Conditions and Approval of Settlement.

1. Effective Date of Agreement. After this Agreement has been executed by

all Parties, it will become effective upon Preliminary Approval of the settlement by the

Court.

2. Submission of the Settlement Agreement to Court for Preliminary

Approval. Within fifteen (15) days after execution of this Agreement, the Parties shall

apply to the Court for Preliminary Approval of the settlement. The Parties shall file a

Joint Motion for Preliminary Approval and Request for a Fairness Hearing, and they shall

attach a copy of this Agreement, the proposed Notice to the Class, in the form of Exhibit

A attached hereto, and such other documents that the Parties determine are necessary for

the Court’s consideration. The Parties further agree to file by that same time a joint

motion to stay proceedings pending the Court’s consideration of the matter.

3. Effect of the Court’s Denial of the Agreement. If the Court rejects this

Agreement, in whole or in part, or otherwise finds that the Agreement is not fair,

reasonable, and adequate, this Agreement shall become null and void.

4. Attorney’s Fees and Costs. The Parties have resolved the matter of fees

arising from this litigation as follows: Within ninety (90) days of the Court’s Final

Approval of the Agreement, as described in Section II.B.7., Defendants will deliver to

Plaintiffs’ Counsel the sum of $425,000, in settlement of all claims for attorneys’ fees


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and costs that could have been or will be claimed in this litigation to date. Plaintiffs and

Class members do not waive any claims to attorney’s fees and costs should future

litigation pursuant to the Dispute Resolution Mechanism in Section II.C.11. be necessary.

5. Fairness Hearing. At the Fairness Hearing, the Parties will jointly request

that the Court approve the settlement as final, fair, reasonable, adequate and binding on

the Class, all Class Members, and all Plaintiffs.

6. Objections to Settlement. Within seven days following the Court’s

Preliminary Approval of the Agreement, Defendants will post the Notice to the Class,

attached as Exhibit A to this Agreement, on USCIS’ website and on EOIR’s website, post

in all immigration courts, distribute to the EOIR pro bono list, and distribute to

community-based organizations and other interested parties. Specifically, EOIR will post

the notice on a bulletin board in the waiting room for each immigration court where there

is such a bulletin board. This is where all notices to the public are typically posted, and

aliens and their counsel should know to look for important notices there. In immigration

courts that lack bulletin boards, EOIR will post the notice in the equivalent location

where respondents and their counsel should know to look for notices. Additionally, to

accommodate detained class members, EOIR will post the notice in a visible place in

EOIR's space within each facility that is accessible to aliens and where aliens should

know to look for important notices, where such a space is available. Each immigration

court has a Court Administrator that can ensure that the notices will be available within

the seven-day deadline. Plaintiffs will distribute the Notice to the Class, attached as

Exhibit A to this Agreement, to all American Immigration Lawyers Association (AILA)

chapters, and post on AILA InfoNet and on Northwest Immigrant Rights Project

(NWIRP), American Immigration Council (AIC) and Massachusetts Law Reform

Institute (MLRI) websites. Within thirty (30) days of issuance of the Notice to the Class,

in the above-described manner, any Plaintiff who wishes to object to the fairness,

reasonableness or adequacy of this Agreement or the settlement contemplated herein

must file with the Clerk of Court and serve on the Parties a statement of objection setting

forth the specific reason(s), if any, for the objection, including any legal support or

evidence in support of the objection, grounds to support his or her status as a Plaintiff,

and whether the Plaintiff intends to appear at the Fairness Hearing. The Parties will have

thirty (30) days following the objection period in which to submit answers to any

objections that are filed. The notice to the Clerk of the Court shall be sent to: Clerk, U.S.

District Court for the Western District of Washington, 700 Stewart Street Seattle, WA

98101, and both the envelope and letter shall state “Attention: A.B.T., et al. v. United

States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.).”

Copies shall also be served on counsel for Plaintiffs and counsel for Defendants as set

forth in the Notice to Class, Exhibit A.

7. Final Approval.

a. The Court’s Final Approval of the settlement set forth in this

Agreement shall consist of its orders granting each of the Parties’ requests made in

connection with the Fairness Hearing, as described in Section II.B.5. of this Agreement,


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resolving all claims before the Court, and dismissing the Action with prejudice, with the

exception that following Final Approval of this Agreement, the Court shall retain

jurisdiction over only the following matters:

i. claims by any party in accordance with the provisions laid out

in Section II.C.11. hereto that any other party has committed a violation of this

Agreement;

ii. the express repudiation of any of the terms of this Agreement

by any party; and

iii. any applications for attorney fees and costs relating to Court

enforcement of this Agreement under the dispute resolution provisions in Section

II.C.11.a.iv. and II.C.11.b.vi. of this Agreement.

C. Miscellaneous Provisions.

1. Entire Agreement. This Agreement, including the Exhibit(s) and the

notices, interim notices and other information described under the Terms of Agreement at

Section III.A., constitutes the entire agreement between the Parties with respect to the

Action and claims released or discharged by the Agreement, and supersedes all prior

discussions, agreements and understandings, both written and oral, among the Parties in

connection therewith.

2. No modification. No change or modification of this Agreement shall be

valid unless it is contained in writing and signed by or on behalf of Plaintiffs and

Defendants and approved by the Court.

3. Full and Final Settlement. The Parties intend that the execution and

performance of this Agreement shall, as provided above, be effective as a full and final

settlement of and shall fully dispose of all claims and issues that Plaintiffs raise against

Defendants in the Action. The Parties acknowledge that this Agreement is fully binding

upon them during the life of the Agreement.

4. Severability. If any provision of this Agreement is declared null, void,

invalid, illegal, or unenforceable in any respect, the remaining provisions shall remain in

full force and effect.

5. Notices. All notices required or permitted under or pertaining to this

Agreement shall be in writing and delivered by any method providing proof of delivery.

Any notice shall be deemed to have been completed upon mailing. Notices shall be

delivered to the Parties at the following addresses until a different address has been

designated by notice to the other Party:

TO PLAINTIFFS:


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Matt Adams

NORTHWEST IMMIGRANT RIGHTS PROJECT


Seattle, WA 98104

TO DEFENDANTS:

J. Max Weintraub

Senior Litigation Counsel

United States Department of Justice

Civil Division

Office of Immigration Litigation – District Court Section

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

6. Opportunity to Review. The Parties acknowledge and agree that they have

reviewed this Agreement with legal counsel and agree to the particular language of the

provisions it contains. In the event of an ambiguity in or dispute regarding the

interpretation of the Agreement, interpretation of the Agreement shall not be resolved by

any rule providing for interpretation against the drafter. The Parties expressly agree that

in the event of an ambiguity or dispute regarding the interpretation of this Agreement, the

Agreement will be interpreted as if each Party hereto participated in the drafting hereof.

7. Construction of Agreement. This Agreement involves compromises of the

Parties’ previously stated legal positions in connection with the Action. Accordingly, this

Agreement does not reflect upon the Parties’ views as to rights and obligations with

respect to matters or persons outside of the scope of this Agreement.

8. Execution of Other Documents. Each party agrees to execute and deliver

such other documents and instruments and to take further action as may be reasonably

necessary to fully carry out the intent and purposes of this Agreement.

9. No Precedential Value. This Agreement, whether or not executed, and any

proceedings taken pursuant to it:

a. Shall not be offered or received against any party as evidence of,

or construed as or deemed to be evidence of, any presumption, concession, or admission

by any of the Parties of the truth in any fact of the validity of any claim that had been or

could have been asserted in the action, or any liability, negligence, fault, or wrongdoing

of the Defendants; or any admission by the Defendants of any violations of, or failure to

comply with, the Constitution, laws or regulations; and

b. Shall not be offered or received against the Defendants as evidence

of a presumption, concession, or admission of any liability, negligence, fault,

wrongdoing, or in any other way referred to for any other reason as against the Parties to


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this Agreement, in any other civil, criminal, or administrative action or proceedings, other

than in proceedings to enforce this Agreement; provided, however, that if this Agreement

is approved by the Court, Defendants may refer to it and rely upon it to effectuate the

liability protection granted them hereunder.

10. Headings. The Parties agree the captions or underlined paragraph headings

in this Agreement are included in the Agreement solely for the convenience of the

Parties, are not part of the terms and conditions of the Agreement, and do not limit, alter,

or otherwise affect the provisions of, and the Parties’ rights and obligations under, this

Agreement.

11. Dispute Resolution Mechanism. With regard to claims raised in the Action

and resolved by this Agreement, the dispute resolution provisions described below shall

provide the sole means to challenge performance of obligations arising under this

Agreement. Claims alleging that a Party has failed to comply with the terms of this

Agreement with respect to the entire Class or an entire Subclass, or multiple members of

the Class or a Subclass must be brought pursuant to subparagraph (a) and as further

provided by subparagraphs (c) – (f) below. Claims alleging that Defendants have failed to

comply with the terms of this Agreement with respect to individual asylum applicants

alleging to be Class members (individual ABT claimants) must be brought pursuant to

the “Individual ABT Claim Review” process, described in subparagraph (b) and as

further provided by subparagraphs (c) - (f) below. This Agreement shall not affect or in

any way limit the ability of parties, individuals, groups, or classes to challenge or obtain

review of claims not resolved by or arising under this Agreement (including those claims

listed in subparagraph (b)(ii) below) through any existing right or authority under law,

regulations, or applicable procedures.

a. Dispute Resolution Terms for multiple Class or Subclass members.

i. For allegations that a party has failed to comply with the

terms of this Agreement with respect to the entire Class or an entire Subclass, or multiple

members of the Class or a Subclass, the complaining party (“complaining party”) shall

notify the other party (“responding party”) in writing of the specific ground(s) upon

which they base their claim of non-compliance with this Agreement, substantiated with

specific, detailed, and timely information about the alleged non-compliance sufficient to

enable the responding party to investigate and respond.

ii. Within forty-five (45) days after the responding party

receives notice of the allegation of non-compliance with this Agreement from the

complaining party in accordance with subparagraph (a)(i) above, the responding party

shall notify the complaining party in writing of the results of the responding party’s

investigation of facts and any action that it has taken or intends to take in connection with

allegation of non-compliance.

iii. Should any dispute remain after a party has undertaken the

dispute resolution mechanism set forth in subparagraphs (a)(i) – (ii) above, the parties


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shall negotiate in good faith to resolve any such remaining disputes within thirty (30)

days from the date the responding party sends notification of the results of its

investigation under subparagraph (a)(ii) above.

iv. Should the parties be unable to resolve any dispute, and

following implementation of the provisions of subparagraphs (a)(i) – (iii) above, the

complaining party may apply to the Court for enforcement of this Agreement. The

complaining party shall notify the responding party of its intent to do so before applying

to the Court for enforcement of the Agreement. Any actions brought to the Court under

subparagraph (a) must be brought by either Defendants USCIS or EOIR or by Class

counsel appointed to represent Plaintiffs in accordance with Section II.A.5. of this

Agreement.

b. Individual ABT Claim Review.

i. The Individual ABT Claim Review process shall be the

exclusive process used by individual ABT claimants who allege that they are Class or

Subclass members and that USCIS and/or EOIR has failed to comply with the terms of

this Agreement. Nothing in this subparagraph limits an individual ABT claimant’s ability

to join a multi-member Class or Subclass challenge under subparagraph (a) above. An

individual ABT claimant may only utilize the Individual ABT Claim Review process to

challenge compliance with this Agreement. Specifically, individual ABT claimants may

only raise the following claims under this review process:

(I) An individual ABT claimant was not provided with

the notice referenced in Section I.A.1. of this

Agreement (“notice”) when he/she lodged or filed

his/her asylum application with the immigration

court, or when USCIS referred his/her case to the

immigration court.

(II) EOIR did not make the notice available at

subsequent hearings before the immigration court.

(III) EOIR did not stamp the individual ABT claimant’s

complete defensive asylum application at the

immigration court clerk’s window, mark as “lodged

not filed,” and return it to the claimant, or prevented

or otherwise deterred the ABT claimant from

lodging a complete asylum application.

(IV) In adjudicating an application for employment

authorization, USCIS did not use the date on which

an individual ABT claimant “lodged” his or her

asylum application at an immigration court clerk’s


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window as the filing date for the purposes of EAD

eligibility.

(V) USCIS did not mail a Failure to Appear Warning

Letter to the individual ABT claimant after the

claimant failed to appear for an asylum interview

with a USCIS Asylum Office.

(VI) Where an individual ABT claimant failed to appear

at a scheduled asylum interview with a USCIS

Asylum Office, and the claimant did not attempt to

reschedule his or her asylum interview with a

USCIS Asylum Office, USCIS did not wait forty-

five (45) days prior to issuance of a decision

referring the asylum application to an immigration

judge.

(VII) USCIS did not include a Referral Notice for Failure

to Appear when referring an individual ABT

claimant’s asylum application to an immigration

judge after the claimant missed an asylum interview

and did not reschedule that interview within forty-

five (45) days.

(VIII) After an ABT claimant requested a determination

on exceptional circumstances referenced in Section

I.A.4. of this Agreement, USCIS did not provide the

individual ABT claimant and/or his or her

representative of record with a determination letter,

with notification of the determination to U.S.

Immigration and Customs Enforcement’s Office of

the Principal Legal Advisor (“ICE OPLA”).

(IX) After the Asylum Office reopened jurisdiction over

an individual ABT claimant’s asylum case, where

the claimant had missed an asylum interview but

later established exceptional circumstances with a

USCIS Asylum Office and where an immigration

judge dismissed proceedings, USCIS did not restart

the time period for asylum adjudication and EAD

eligibility on the date that the ABT claimant

appeared for a rescheduled interview.

(X) In adjudicating an application for employment

authorization, USCIS did not credit the applicant

with the number of days that elapsed between the


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immigration judge’s initial denial of the individual

ABT claimant’s asylum claim and the date of the

BIA’s remand order for the purposes of EAD

eligibility.

ii. The following non-exhaustive list of claims cannot be

challenged through the Individual ABT Claim Review process; however, this Agreement

shall not affect or in any way limit the ability of parties, individuals, groups, or classes to

challenge or obtain review of claims not resolved by this Agreement through any existing

right or authority under law, regulations, or applicable procedures.

(I) A challenge to whether an immigration judge made

the reason(s) for the case adjournment clear on the

record.

(II) A challenge to whether the immigration judge

offered a non-detained individual ABT claimant an

expedited hearing date that was a minimum of

forty-five (45) days from the last master calendar

hearing.

iii. Individual asylum applicants alleging to be Class or

Subclass members who believe that USCIS and/or EOIR have failed to comply with the

terms of this Agreement as required under Section III.A. (i.e., individual ABT claimants)

must complete and submit to USCIS and/or EOIR, as appropriate, an ABT Claim Form

(attached to this Agreement as Exhibit B), detailing the basis for the alleged violation of

the Agreement, together with copies of any documents, applications, receipts, notices,

and/or letters in their possession that are requested in the ABT Claim Form or that the

individual ABT claimants believe support their claim(s). Included in the ABT Claim

Form, the individual ABT claimant must designate which ground he/she is claiming the

Defendant(s) is/are noncompliant with in this Agreement (as enumerated in subparagraph

(b)(i) above).

iv. Within forty-five (45) days after USCIS and/or EOIR’s

receipt of an ABT Claim Form in accordance with subparagraph (b)(iii) above, USCIS

and/or EOIR will mail the claimant and/or his or her representative or record, if any,

either a written Final Notice or a Notice of Preliminary Findings, as described in clause

(I) and/or (II) below:

(I) The Final Notice will include the results of USCIS’s

and/or EOIR’s investigation of the facts as follows: (1) a

determination of whether or not the claimant is a Class or

Subclass member; (2) if the individual claimant is found to

be a Class or Subclass member, a determination of whether

a violation of the Agreement occurred with respect to the

individual ABT claimant; (3) a description of any


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corrective action that it has taken or intends to take to

remedy the violation (if any); and (4) in the event USCIS

and/or EOIR determines that the individual ABT claimant

is not a member of a Class or Subclass, or has not stated a

claim cognizable under the Agreement, instructions

regarding seeking review of that determination or any

corrective action, as further described in subparagraph (vi)

below.

(II) The Notice of Preliminary Findings will explain the

basis for USCIS and/or EOIR’s belief that the claimant is

not a Class or Subclass member, or that there was no

violation of the Agreement, and request additional

information and/or evidence from the individual ABT

claimant. If USCIS and/or EOIR send a Notice of

Preliminary Findings, the applicant will have thirty (30)

days (the “supplementation period”) to submit additional

written evidence or information to remedy the perceived

deficiency. After the supplementation period has elapsed

with no response from the individual ABT claimant, or

within thirty days following timely receipt of any

supplemental documents or information from the claimant,

USCIS and/or EOIR will send a Final Notice, as described

in clause (I) above, to the claimant and/or his or her counsel

of record.

v. Should any dispute remain after an individual ABT

claimant has undertaken the dispute resolution mechanism in subparagraph (b) above, the

parties may negotiate in good faith to resolve any such remaining disputes within thirty

(30) days from when USCIS and/or EOIR mailed the Final Notice under subparagraph

(b)(iv) above. By way of example and not limitation, if a claim is granted, but the

complaining party believes that the corrective action described in the Final Notice

granting the claim is insufficient to correct error, he or she may attempt to negotiate a

resolution of that dispute.

vi. Should the parties be unable to resolve a dispute, and

following implementation of the provisions of subparagraphs (b)(i) – (v) above,

individual ABT claimants may apply to the Court for enforcement of this

Agreement. The parties agree that individual ABT claimants shall not apply to the Court

for enforcement of the Agreement until applicable procedures detailed in subparagraph

(b) above have been exhausted, and subject to the further terms and limitation provided in

this Section II.C.11. The individual ABT claimants shall notify the Defendants of their

intent to do so before applying to the Court for the enforcement of the Agreement.

c. All claims arising under this Agreement, pursuant to subparagraph

(a) above must be raised by Class counsel as soon as possible, but no later than 180 days


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after discovery of the claim; or in the case of individual ABT claimants seeking to

implement the Individual ABT Claim Review process pursuant to subparagraph (b)

above, as soon as possible, but by no later than 180 days following the denial of an

application for employment authorization, based on an alleged violation of the terms

provided under this Agreement.

d. The Parties agree that the provisions in Section II.C.11. will not be

used to resolve any disputes regarding timeliness of the reports listed in Section II.C.13.

of the Agreement. The Parties agree that failure to comply with the time periods or

deadlines described in Section II.C.11. shall not constitute separate violations of this

Agreement; however, if a responding party fails to respond to a claim presented in

Section II.C.11. within the prescribed time period or by the required deadline, the

complaining party may proceed to seek further review of the claim from the Court, or as

otherwise provided in this Agreement.

e. Defendants agree to use reasonable and good faith efforts to

implement the procedures described in this Agreement in a manner that avoids

unnecessary interruption of asylum seekers’ employment authorization where eligible,

and that facilitates eligible asylum applicants’ ability to provide documentation in

accordance with the requirements of 8 U.S.C. § 1324a(b) and 8 C.F.R. § 274a.2.

f. The Parties agree that these dispute resolution terms in Section

II.C.11. of this Agreement will terminate 180 days after the Termination Date of the

Agreement under Section II.C.14. of this Agreement and, subject to the limitations

described in subparagraph (c) above, all pending claims have been resolved under this

paragraph.

12. Applicable Law. This Agreement and its terms shall be construed in

accordance with the law of the United States of America and the United States Court of

Appeals for the Ninth Circuit.

13. Periodic Reporting of Defendants. Because full implementation of each of

the terms of this Agreement will take time (with settlement terms referenced in Sections

III.A.1. and III.A.2., below, taking up to twenty-four (24) months from the Effective Date

of this Agreement), Defendants agree to submit reports every six (6) months to Plaintiffs

and file them with the Court detailing the progress made towards implementation of the

settlement terms. When Defendants determine that a settlement term is fully

implemented, they shall submit a report explaining the reasons for this conclusion to

Plaintiffs and file it with the Court.

14. Termination Date. This Agreement and all of its terms, and all rights

acquired hereunder, shall end either four (4) years following the full implementation of

all the terms of Agreement, as documented by Defendants’ reports to Plaintiffs and the

Court with respect to each settlement term (described in Section II.C.13., above) of this

Agreement, or upon the following date: the Effective Date of this Agreement plus six (6)

years, whichever shall first occur.


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15. Nothing in this Agreement shall prevent Defendants EOIR and/or USCIS

from amending their regulations, manuals, policies, procedures, and/or practices as

necessary or for purposes of complying with applicable statutory changes and/or

precedential decisions, provided that Defendants continue to comply with all of their

obligations under the terms of this Agreement. Should either Defendant determine that a

change in law, whether statutory or by precedent decision, necessitates a change in their

regulations, manuals, policies, procedures, and/or practices that would conflict with one

or more of its obligations under the Agreement, the Parties shall attempt to reach an

agreement with respect to the Defendant’s continuing obligations under the Agreement

and/or any amendments to this Agreement, pursuant to procedures outlined in Section

II.11.a. of this Agreement. Should the Parties fail to agree, the question of how the

Defendant’s continuing obligations under the Agreement are affected by the change in

the law will be submitted to the Court pursuant to Section II.11.a.iv. of this Agreement.

III. TERMS OF THE AGREEMENT

A. By this Agreement, Defendants have agreed to modify certain of their processes,

policies, procedures, and practices. The terms of this Agreement shall apply to members

of the Class commencing from the date upon which each of the changes, including

interim changes, described herein are implemented, as further described below.

1. Notice & Review Claim.

a. Defendant EOIR will amend the November 15, 2011, Operating

Policies and Procedures Memorandum 11-02: The Asylum Clock from Chief

Immigration Judge Brian O'Leary, to state that an immigration judge must make the

reason(s) for the case adjournment clear on the record. Furthermore, Defendants will

provide general information, jointly produced by Defendants EOIR and USCIS, who

shall work in good faith with Plaintiffs’ counsel, regarding employment authorization for

individuals with pending asylum applications, including where to obtain case-specific

information, the impact of hearing adjournment codes on EAD eligibility, and where to

direct inquiries relating to requests to correct hearing adjournment codes and inquiries

relating to EAD eligibility. Defendant EOIR will provide the notice to an asylum

applicant when an asylum application is lodged or filed with an immigration court. In

addition, EOIR will make a copy of the notice available at each hearing. USCIS will

make the information publicly available, including providing the notice to an asylum

applicant upon referral. While the content of the EAD denial letter cannot be determined

at this time, USCIS agrees to consider in good faith input from Plaintiffs’ counsel as to

the language and content of the EAD denial letter.

b. Defendants will amend the November 15, 2011, Operating Policies

and Procedures Memorandum 11-02: The Asylum Clock from Chief Immigration Judge

Brian O'Leary, within six (6) months of the Effective Date of this Agreement. With

regard to the remaining resolutions described in subparagraph (a) above, Defendants will


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implement these resolutions as soon as possible, but no later than twenty-four (24)

months from the Effective Date of this Agreement.

c. In the interim, Defendants will implement the following

procedures to provide relief to affected Class members: Defendants will work with

Plaintiffs’ counsel to create an interim notice regarding employment authorization for

individuals with pending asylum applications within six (6) months of the Effective Date

of this Agreement. Defendants will also provide contact information for inquiries

regarding requests to correct the calculation of the asylum adjudications period before the

Asylum Office, hearing adjournment codes before the immigration court, and asylum-

related EAD denials.

d. Class members who have appeared or who will appear before

EOIR or USCIS prior to the Defendants’ implementation of these settlement terms shall

not have a cause of action against the Defendants arising from the fact that they were not

previously afforded the relief described herein as pertains to the Notice and Review

Claim.

e. The interim and final relief described in this Agreement in Section

III.A.1. shall apply prospectively to Notice and Review Class members at the time that

these settlement terms are implemented.

2. Hearing Claim.

a. Defendant EOIR will accept complete defensive asylum

applications at the immigration court clerk's window as “lodged not filed.” EOIR will

transmit the “lodged not filed” date to USCIS. The applicant will submit a Form I-765,

Application for Employment Authorization, to USCIS, along with a copy of the asylum

application that the EOIR immigration court clerk stamped “lodged not filed.” An asylum

applicant may only lodge a complete asylum application once. If an asylum application is

lodged, it must be lodged before that application is filed with an immigration judge. The

requirement that an asylum application be filed before an immigration judge will not

change. Defendant EOIR considers the asylum application “filed” on the date an

immigration judge accepts the application at a hearing. Defendant USCIS will consider

the date on which the asylum application was “lodged not filed” at the EOIR clerk’s

window as an application filing date for the purpose of calculating the time period for

EAD eligibility. Defendants will implement these resolutions as soon as possible but no

later than twenty-four (24) months from the Effective Date of this Agreement.

b. In the interim, Defendants will implement the following

procedures to provide relief to affected Class members: If an asylum application is

submitted to an immigration court outside of a hearing before an immigration judge, the

asylum application will be stamped “lodged not filed” by a clerk at the EOIR court at

which the application is lodged. When filing a Form I-765, Application for Employment

Authorization, with USCIS, the applicant will submit a copy of the asylum application

that an EOIR immigration clerk stamped “lodged not filed.” In adjudicating the


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application for employment authorization, USCIS will consider the date on which the

application was stamped “lodged not filed” as the application filing date for the purpose

of calculating the time period for EAD eligibility. Defendants will implement these

resolutions within six (6) months of the Effective Date of this Agreement.

c. Hearing Subclass members who are or will be in immigration

proceedings before EOIR prior to the Defendants’ implementation of these settlement

terms shall not have a cause of action against the Defendants arising from the fact that

they were not previously afforded the relief described herein as pertains to the Hearing

Claim.

d. The interim and final relief described in this Agreement at Section

III.A.2. shall apply prospectively to Hearing Subclass members whose asylum

applications have not previously been deemed filed by an immigration judge at a hearing

at the time that these settlement terms are implemented.

3. Prolonged Tolling Claim.

a. Defendant EOIR will amend the November 15, 2011, Operating

Policies and Procedures Memorandum 11-02: The Asylum Clock from Chief

Immigration Judge Brian O’Leary, to change section VI.E.2.c. (“Proceedings Before the

Immigration Court: Offering Future Hearing Dates: Expedited Cases: Offering an

‘Expedited Asylum Hearing Date’”) from “minimum of 14 days should be allowed” to

“minimum of 45 days must be allowed.” Defendant EOIR will add an exception for

detained cases, in which the “minimum of 14 days” time period will remain. Defendants

will implement these resolutions within six (6) months of the Effective Date of this

Agreement.

b. Prolonged Tolling Subclass members who have appeared or who

will appear before EOIR prior to the Defendants’ implementation of these settlement

terms shall not have a cause of action against the Defendants arising from the fact that

they were not previously afforded the relief described herein as pertains to the Prolonged

Tolling Claim.

c. The interim and final relief described in this Agreement in Section

III.A.3. shall apply to prolonged tolling Subclass members in immigration proceedings

who have not had their merits hearing calendared for the first time before EOIR at the

time these settlement terms are implemented, and shall apply prospectively.

4. Missed Asylum Interview Claim.

a. Defendant USCIS will mail a “Failure to Appear” Warning Letter

as soon as possible after an asylum applicant misses an interview. The letter will describe

the effect of the failure to appear on EAD eligibility and list procedural steps the

applicant must take to establish “good cause” for failing to appear for the interview. It


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will also describe the effect of failing to respond to the warning letter within a forty-five

(45) day period.

b. Defendant USCIS will extend the period prior to issuance of a

decision (including a referral letter) from fifteen (15) to forty-five (45) calendar days,

during which time submission of an excuse for missing an interview will be treated as a

request to reschedule under the Asylum Division’s Affirmative Asylum Procedures

Manual and the “good cause” standard will apply.

c. Defendant USCIS will include a new “Referral Notice for Failure

to Appear” with charging documents mailed to the applicant. This notice will describe the

effect of the failure to appear on EAD eligibility and list procedural steps the applicant

must take to establish “exceptional circumstances” with an Asylum Office.

d. Defendants will provide Plaintiffs' counsel with drafts of the

“Failure to Appear” Warning Letter and the “Referral Notice for Failure to Appear” and

will consider their input in good faith before finalizing these documents.

e. Defendant USCIS will revise the process of establishing

exceptional circumstances with an Asylum Office as follows. Upon determining whether

exceptional circumstances exist, the Asylum Office will issue a determination letter to the

applicant and/or his or her representative of record, and notify ICE OPLA of the

determination. If the Asylum Office determines that exceptional circumstances exist, the

applicant may then request that ICE OPLA file a joint motion for dismissal of

immigration proceedings. If the proceedings are dismissed, and the asylum application is

returned to the Asylum Office, the Asylum Office will reopen the asylum application and

take jurisdiction over the applicant’s case.

f. Defendant USCIS will restart the 180-day time period for

determining asylum adjudication and EAD eligibility following the resolution of the

missed interview based on exceptional circumstances. If the applicant establishes

exceptional circumstances, and the application is returned to the Asylum Division, the

time period for determining asylum adjudication and EAD eligibility, which stopped on

the date of the failure to appear, would restart on the date the applicant appears for the

rescheduled interview at an Asylum Office.

g. Defendants will implement these resolutions in subparagraph (a) –

(f) within six (6) months of the Effective Date of this Agreement.

h. Missed Asylum Interview Subclass members who have appeared

or who will appear before USCIS prior to the Defendants’ implementation of the

settlement terms shall not have a cause of action against the Defendants arising from the

fact that they were not previously afforded the relief described herein as pertains to the

Missed Asylum Interview Claim.


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i. The relief described in this Agreement in Section III.A.4., shall

apply to Missed Asylum Interview Subclass members who have filed or will file an

asylum application with USCIS and who have not yet had that application referred to an

immigration judge at the time that the Defendants implement these settlement terms, and

shall apply prospectively. This paragraph does not preclude any Class member from

seeking relief under the provisions of the Affirmative Asylum Procedures Manual dated

November 2007 (revised July 2010) pre-dating this Agreement in Section I (1), page. 91-

92, regarding post-referral review of exceptional circumstances.

5. Remand Claim.

a. Following a BIA remand of a case for the adjudication of an

asylum claim, whether on appeal from an immigration judge decision or following a

remand from a U.S. Court of Appeals, for purposes of EAD eligibility, the applicant will

be credited with the number of days that elapsed between the initial immigration judge

denial and the date of the BIA remand order. In addition, the applicant will accrue time

creditable toward employment authorization from the date of the BIA remand order going

forward, exclusive of applicant caused delays. An asylum applicant seeking employment

authorization must attach a copy of the complete BIA order remanding the case for the

adjudication of an asylum claim to the immigration court to his or her application for

employment authorization.

b. Remand Subclass members who have appeared or who will appear

before EOIR prior to the Defendants’ implementation of these settlement terms shall not

have a cause of action against the Defendants arising from the fact that they were not

previously afforded the relief described herein as pertains to the Remand Claim.

c. The relief described in this Agreement in Section III.A.5. shall

apply to all Remand Subclass members whose asylum cases have been remanded and

whose asylum cases are pending before EOIR at the time the Defendants implement these

settlement terms, and shall apply prospectively. Defendants will implement these

resolutions within six (6) months of the Effective Date of this Agreement.

B. EADs for Named Plaintiffs. The named plaintiffs and relatives of named

plaintiffs who received limited 240-day EADs pursuant to the Parties’ earlier agreement

will remain eligible for one-year renewals of their EADs for so long as their asylum

applications remain pending.


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IN WITNESS WHEREOF, the Parties have executed this Agreement, which may be

executed in counterparts and the undersigned represent that they are authorized to execute

and deliver this Agreement on behalf of the respective Parties.

Consented and agreed to by:

DATED: September 18, 2013 Respectfully submitted,

STUART F. DELERY

Acting Assistant Attorney General

Civil Division

DAVID J. KLINE

Director

COLIN A. KISOR

Deputy Director

/s/ J. Max Weintraub

J. MAX WEINTRAUB

Senior Litigation Counsel

United States Department of Justice

Civil Division

Office of Immigration Litigation

District Court Section

P.O. Box 868, Ben Franklin Station


Phone: (202) 305-7551

Fax: (202) 305-7000

Email: [email protected]

JENNY A. DURKAN

United States Attorney

/s/ Priscilla T. Chan

PRISCILLA T. CHAN, WSBA# 28533

Assistant United States Attorney

Western District of Washington

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

Phone: 206-553-7970

Fax: 206-553-4073


Attorneys for Defendants


mailto:[email protected]


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s/ Matt Adams

s/ Christopher Strawn

Matt Adams #28287

Christopher Strawn #32243

NORTHWEST IMMIGRANT RIGHTS

PROJECT


Seattle, WA 98104

(206) 587-4009 ext. 111

(206) 587-4025 (Fax)



Melissa Crow

Mary Kenney

Emily Creighton

AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200


(202) 507-7512

(202) 742-5619 (Fax)




Robert H. Gibbs

Robert Pauw

GIBBS HOUSTON PAUW

1000 Second Avenue, Suite 1600

Seattle, WA 98104

(206) 224-8790

(206) 689-2270 (Fax)



Iris Gomez

MASSACHUSETTS LAW REFORM

INSTITUTE

99 Chauncy Street, Suite 500

Boston, MA 02111

(617) 357-0700 x. 331

(617) 357-0777 (Fax)


Attorneys for Plaintiffs










ATTACHMENT B


Executive Office for

Immigration Review

THE 180-DAY ASYLUM EAD CLOCK NOTICE

What is the 180-day Asylum EAD Clock?

The “180-day Asylum EAD Clock” measures the time period during which an asylum application has been pendingwith the U.S. Citizenship and Immigration Services (USCIS) asylum office and/or the Executive Office forImmigration Review (EOIR). USCIS service centers adjudicate the Form I-765, Application for EmploymentAuthorization, and use the 180-day Asylum EAD Clock to determine eligibility for employment authorization.Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file aForm I-765. USCIS cannot grant employment authorization for an additional 30 days, for a total 180-day waitingperiod. This 180-day Asylum EAD Clock does not include any delays applicants request or cause while theirapplications are pending with an asylum office or immigration court.

What Starts the 180-day Asylum EAD Clock?

For asylum applications first filed with an asylum office, USCIS calculates the 180-day Asylum EAD Clock startingon the date that a complete asylum application is received by USCIS, in the manner described by the Instructions tothe Form I-589, Application for Asylum and for Withholding of Removal. If an asylum application is referred fromthe asylum office to EOIR, the applicant may continue to accumulate time toward employment authorizationeligibility while the asylum application is pending before an immigration judge.

For asylum applications first filed with EOIR, USCIS calculates the 180-day Asylum EAD Clock in one of twoways:

1) If a complete asylum application is “lodged” at the immigration court window, the application will bestamped “lodged not filed” and the applicant will start to accumulate time toward eligibility foremployment authorization on the date of lodging, or

2) If the asylum application is not “lodged,” the applicant generally will start to accumulate time towardeligibility for employment authorization on the date that a complete asylum application is filed at ahearing before an immigration judge.

Applicants who lodge an application at an immigration court window must still file the application with animmigration judge at a later hearing.

What stops the 180-day Asylum EAD Clock?

The 180-day Asylum EAD Clock does not include any delays requested or caused by an applicant while his or herasylum application is pending with USCIS and/or EOIR.

For cases pending with an asylum office:

Delays requested or caused by an applicant may include: A request to transfer a case to a new asylum office or interview location, including when the transfer is

based on a new address; A request to reschedule an interview for a later date; Failure to appear at an interview or fingerprint appointment; Failure to provide a competent interpreter at an interview; A request to provide additional evidence after an interview; and Failure to receive and acknowledge an asylum decision in person (if required).

If an applicant is required to receive and acknowledge his or her asylum decision at an asylum office, but fails toappear, his or her 180-day Asylum EAD Clock will stop until the first master calendar hearing with an immigrationjudge after the case is referred to EOIR.

If an applicant fails to appear for an asylum interview, the 180-day Asylum EAD Clock will stop on the date of themissed interview, and the applicant may be ineligible for employment authorization unless he or she makes a writtenrequest to the asylum office to reschedule the interview within 45 days and demonstrates “good cause” for missingthe interview. A request to reschedule an interview with the asylum office that is made after 45 days from themissed interview must demonstrate “exceptional circumstances,” which is a higher standard than good cause. If theapplicant has established exceptional circumstances for missing the asylum interview, and is currently in removal


proceedings before an immigration judge, the asylum office cannot reopen the asylum application or reschedule theapplicant for an interview unless the immigration judge dismisses the removal proceedings. If the asylum officedetermines that an applicant’s failure to appear for an interview was due to lack of notice of the interviewappointment, the asylum office will not attribute a delay to the applicant and the asylum office will reschedule theinterview.

For more information about reschedule requests and missed asylum interviews, see “Preparing for Your AsylumInterview” on the Asylum Division’s website at www.uscis.gov/Asylum.

For cases pending with EOIR:

Asylum cases pending with EOIR are adjudicated at hearings before an immigration judge. At the conclusion (or“adjournment”) of each hearing, the immigration judge will determine the reason for the adjournment. If theadjournment is requested or caused by the applicant, the applicant will stop accumulating time toward the 180-dayAsylum EAD Clock until the next hearing. If the adjournment is attributed to the immigration court or theDepartment of Homeland Security, the applicant will continue accumulating time.

Common reasons why an asylum applicant may stop accumulating time toward the 180-day Asylum EAD Clockinclude:

An applicant asks for the case to be continued so he or she can get an attorney; An applicant, or his or her attorney, asks for additional time to prepare the case; and An applicant, or his or her attorney, declines an expedited asylum hearing date.

Additionally, if an asylum applicant files a motion between hearings that delays the case, such as a motion tocontinue or a motion to change venue, and that motion is granted, the applicant may stop accumulating time towardthe 180-day Asylum EAD Clock. The last page of this notice contains a chart listing reasons for case adjournmentsand whether these reasons are applicant-caused delays. Additional information regarding codes used by theimmigration courts that affect the 180-day Asylum EAD Clock can be found at the Operating Policy and ProceduresMemorandum (OPPM) 13-02, The Asylum Clock, available at www.justice.gov/eoir.

Further, the accumulation of time toward the 180-day Asylum EAD Clock stops on the date an immigration judgeissues a decision on the asylum application. An applicant whose asylum application is denied before 180 days haveelapsed on the 180-day Asylum EAD Clock will not be eligible for employment authorization. However, if thedecision is appealed to the Board of Immigration Appeals (Board) and the Board remands it (sends it back) to animmigration judge for adjudication of an asylum claim (including Board remands to an immigration judge followingan appeal to a U.S. Court of Appeals), the applicant’s 180-day Asylum EAD Clock will be credited with the totalnumber of days between the immigration judge’s decision and the date of the Board’s remand order.

The applicant will continue to accumulate time on the 180-day Asylum EAD Clock while the asylum claim ispending after the remand order, excluding any delays requested or caused by the applicant.

How do I find more information about the 180-day Asylum EAD Clock?

Asylum applicants in removal proceedings before EOIR may call the EOIR hotline at 1-800-898-7180 to obtaincertain information about their 180-day Asylum EAD Clock. The EOIR hotline generally reports a calculation of thenumber of days between the date an asylum application was filed with an asylum office or at a hearing before animmigration judge, and the date the immigration judge first issued a decision on the application, not including delaysrequested or caused by the applicant.

However, in some cases, an applicant may have accumulated more time on the 180-day Asylum EAD Clock thanthe number of days reported on the EOIR hotline. The number of days reported on the hotline does not include:

The time an applicant accumulates toward the 180-day Asylum EAD Clock when the applicant haslodged an asylum application at an immigration court window prior to filing the application at ahearing before an immigration judge; or

The time that USCIS may credit to an applicant’s 180-day Asylum EAD Clock if the asylumapplication was remanded to an immigration judge by the Board for further adjudication of an asylumclaim.

To determine the number of days on an applicant’s 180-Day Asylum EAD Clock, an applicant may rely on thenumber of days reported by the EOIR hotline if the applicant has not lodged his or her application at an immigration


court window or if the asylum application was not remanded from the Board for further adjudication of an asylumclaim.

Applicants who lodged an application at an immigration court window should add the number of days between thedate of lodging of the application and when the application was filed at a hearing before an immigration judge (orthe current date if the applicant has not yet had a hearing at which the application could be filed).

Applicants whose cases were remanded from the Board for further adjudication of the asylum claim should add thenumber of days from the immigration judge’s initial decision on the asylum application to the date of the Board’sorder remanding the case. These applicants continue to accumulate time toward the 180-day Asylum EAD Clockafter the case is remanded, excluding delays requested or caused by the applicant. For more information on whethera delay is requested or caused by the applicant, please see the previous section.

What if I think there is an error in the calculation of time on my 180-Day Asylum EAD Clock?

For questions regarding time accumulated on the 180-day Asylum EAD Clock when an applicant’s asylumapplication is pending with an asylum office, please contact the 180-day Asylum EAD Clock point of contact at theasylum office with jurisdiction over the case. The points of contact can be found on the Asylum Division Web pageat www.uscis.gov/Asylum under “Asylum Employment Authorization and Clock Contacts.”

For cases before EOIR, asylum applicants should address questions to the immigration judge during the hearing, orto the court administrator, in writing, after the hearing. Applicants should not file motions related to the 180-dayAsylum EAD Clock. If an applicant believes the issue has not been correctly addressed at the immigration courtlevel, the applicant may then contact the Assistant Chief Immigration Judge for the appropriate immigration court inwriting. For cases on appeal, applicants may contact EOIR’s Office of General Counsel in writing. Please refer toOPPM 13-02 for more details.

What if I think there is an error in the adjudication of my Form I-765, Application for EmploymentAuthorization?

USCIS service centers adjudicate the Form I-765. Applicants may contact a USCIS service center through theNational Customer Service Center hotline at 1-800-375-5283. Inquiries that cannot be resolved by a customerservice representative will be routed to the service center where the Form I-765 was filed. Applicants should receivea response from the service center within 30 days. If more than 30 days pass without a response, applicants mayemail the appropriate USCIS service center at one of the following addresses:

California Service Center: [email protected] Service Center: [email protected] Service Center: [email protected] Service Center: [email protected]

If applicants do not receive an email response from the service center address above within 21 days, applicants mayemail the USCIS Headquarters Office of Service Center Operations at [email protected].

What is the ABT Settlement Agreement?

On April 12, 2013, USCIS and EOIR entered into a settlement agreement in the class action litigation B.H., et al. v.USCIS, et al., also referred to as the ABT Settlement Agreement. Under the terms of the ABT SettlementAgreement, USCIS and EOIR agreed to change certain practices related to asylum cases and the calculation of timefor employment authorization eligibility.

The ABT Settlement Agreement has a separate review process for asylum applicants who believe they have notreceived relief described in the ABT Settlement Agreement. Applicants who believe they have been denied reliefunder the Agreement should consult the ABT Settlement Agreement and associated documents, and follow theIndividual ABT Claim Review process described in the Agreement to resolve their claims. For more informationabout the ABT Settlement Agreement, visit www.uscis.gov or www.justice.gov/eoir.

How do I apply for work authorization?

For instructions on how to apply for employment authorization, visit the USCIS website at www.uscis.gov/i-765 andsee the Instructions to Form I-765, Application for Employment Authorization.


ADJOURNMENT CODES

December 2, 2013

Description Code Clock Description Code Clock

Alien to Seek Representation 01 S Preparation – DHS 03 RPreparation – Alien/Attorney/Representative 02 S DHS or DHS Administrative File Unavailable for Hearing 04 RAlien to File for Asylum 05 S DHS Application Process – DHS Initiated 7B RAlien to File Other Application 06 S Alien in DHS/Corrections Custody not Presented for Hearing 09 RDHS Application Process – Alien Initiated 7A S Alien Released From DHS/Corrections Custody 16 RDHS Adjudication of I-130 7C S DHS to Provide Biometrics Check 24 RDHS Adjudication of I-140 7D S DHS Request for an In-Person Hearing 27 RDHS Adjudication of I-730 7E S DHS Investigation 37 RDHS Adjudication of I-751 7F S DHS Forensic Analysis 43 R1966 Cuban Adjustment 7G S Cooperating Witness/Law Enforcement 44 RPending Naturalization of Petitioning Relative 7H S New Charge Filed by DHS 47 RNo-show by Alien/Alien’s Attorney/Representative 11 S Juvenile Home Study 49 RAlien/Alien’s Attorney/Representative Request 12 S Quarantine – Detained Cases 50 RSupplement Asylum Application 21 S DHS Request for Certification of Mental Competency 53 RAlien or Representative Rejected Earliest Possible Vertical Prosecution – DHS Cause Delay 56 R

Asylum Hearing 22 S DHS Vertical Prosecution Date Not Accommodated 58 RAsylum Application Withdrawn/Reset for Other Issues 23 XAlien Request for an In-Person Hearing 26 SConsolidation with Family Member 30 SPreparation of Records/Biometrics Check/

Overseas Investigation by Alien 36 SIllness of Alien 38 S Insufficient Time to Complete Hearing 13 RIllness of Atty/Representative 39 S MC to IC – Merits Hearing 17 RIllness of Witness 40 S IJ Request for an In-Person Hearing 28 RAlien Requested Forensic Analysis 42 S RC to SC Merits Hearing 31 RJoint Request of Both Parties 45 S Unplanned IJ Leave – Sick/Annual 34 RContested Charges 51 S Unplanned IJ Leave – Detail/Other Assignment 35 RJurisdiction Rests with the BIA 52 S Interpreter Appeared But IJ Rejected 48 RAlien Claim to U.S. Citizenship 54 S Reserved Decision RR RDHS Vertical Prosecution Date Not Accommodated 57 S

IJ Completion (Prior to Hearing) 8A S TeleVideo Malfunction 46 RState Department Response not in File 08 R Hearing Deliberately Advanced 55 NNotice Sent/Served Incorrectly 10 R October 2013 Government Shutdown 59 ROther Operational/Security Factors 14 R Court-Ordered Mental Competency Evaluation 60 RAllow for Scheduling of Priority Case 25 R Court-Appointed Attorney 61 RConcurrent Application 29 R Case Severed from Lead – Hearing Adjourned 96 RNo Interpreter – Not Ordered 32 R Case Joined to Lead – Hearing Adjourned 97 RNo Interpreter – Ordered but FTA 33 R Data Entry Error 99 N

ALIEN – RELATED ADJOURNMENTS DHS – RELATED ADJOURNMENTS

IJ – RELATED ADJOURNMENTS

OPERATIONAL ADJOURNMENTS

CLOCK CODES

S = Stops

R = Runs

X = Eliminates

N = Neutral AILA InfoNet Doc. No. 13121062. (Posted 12/10/13)

ATTACHMENT C


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U.S. Department of Justice

Executive Office for Immigration Review

Immigration Court

Name:

A Date of Notice:

REJECTED LODGING NOTICE

On , the Immigration Court received the attached Form I-589, Application for Asylumand Withholding of Removal, from you. It appears that you intended to lodge the application with theImmigration Court pursuant to the ABT Settlement Agreement. The Immigration Court is returning theapplication for asylum to you because it was not correctly submitted for lodging purposes. If thedefect can be corrected, you can correct the mistake and return the application to the ImmigrationCourt.

The Immigration Court is returning your documents because:

No Name – Your document is missing your name.

No A-Number – Your document is missing your A-Number.

Missing or Improper Signature – Your asylum application is missing a requiredsignature.

Asylum Application Already Lodged or Filed – Our records indicate that you havealready lodged or filed an asylum application. You cannot lodge an asylum applicationwith the Immigration Court after you have already lodged or filed an asylumapplication.

Incorrect Lodging Location – This Immigration Court is not, at this time, the correctlocation to lodge your asylum application. Our records indicate that the___________________ Immigration Court is the correct location to lodge your asylumapplication. The address is:

_________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

Case at BIA – Our records indicate that your case is pending before the Board ofImmigration Appeals. Therefore, you cannot lodge an asylum application with theImmigration Court.


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Case not Pending – The Immigration Court does not have a record of your case.

Please make sure that you have put your correct name and A-number on yourdocuments.

If you did not put your correct name and A-number on your documents, you shouldcorrect the mistake and return the documents to the Immigration Court.

If you did put your correct name and A-number on your documents, the Departmentof Homeland Security has not started your case with the Immigration Court. To startyour case, the Department of Homeland Security must file a Notice to Appear withthe Immigration Court. You cannot lodge an asylum application with theImmigration Court until the Department of Homeland Security files a Notice to Appearwith the Immigration Court.

No Return Delivery Packaging – You did not include a self-addressed stampedenvelope or comparable pre-paid return delivery packaging. See Immigration CourtPractice Manual Chapter 4.15(l)(i).

Other – __________________________________________________________

If you have any questions about how to lodge an asylum application with the ImmigrationCourt, you can find information in the “180-Day Asylum EAD Clock Notice” and theImmigration Court Practice Manual, both of which are available at www.justice.gov/eoir.

If you have any questions about how to apply for employment authorization, you can findinformation on the USCIS website at www.uscis.gov.


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